Friday, January 13, 2012

The False Confession Expert

Confession is a misnomer.  True confessions occur in only about 10% of my cases.  Everything else a defendant says that is not a confession is simply called a statement.

The defendant can make many statements to the police.  He can admit being at the crime scene but claim he wasn't involved.  He can provide an alibi.  He can claim he attacked someone in self-defense.  He can claim that men with gills emerged from the sea and told him to kill someone.

These are not confessions.  These are statements that provide a defense to the charges.  A false confession occurs when a suspect admits to a crime and he is actually not responsible for that crime.

It can happen in different ways.  A person can admit to a crime when he hopes to gain approval from the police officers, if he expects to go home, or in hopes to end a stressful interrogation.  A person with a mental disease may also confess to a crime.  A person seeking publicity can as well.  It is also claimed that a person can begin to believe they committed the crime under aggressive questioning. 

Defense attorneys are increasing their attempts to have false confession experts testify at a trial.  The expert is supposedly trained in the area and will say that a given statement was false or coerced.  New York courts routinely reject such testimony because the scientific theory has yet to gain general acceptance in the scientific community and that the proposed testimony is not outside a juror's ability to judge for themselves.

In New York, any novel scientific testimony must be subjected to a pre-trial hearing called a Frye hearing.  To meet the Frye standard, scientific testimony from a false confession expert must be generally accepted by the scientific community.  False confession expert testimony is simply not accepted in the scientific community as reliable and, thus, not admissible evidence in New York yet.  The problem is there is no scientific data to support the testimony.  It is all based on anecdotal evidence.  

The courts have found that much of the proposed testimony is based on the expert's own subjective view of selected cases and the expert's analysis has not been subjected to peer review.  Basically, the expert testifies that interrogation techniques could result in a false confession, but doesn't provide the evidence to support the claim.

The expert speaks in general terms, indicating that the police method of interrogation could have resulted in a false confession.  The courts are seeking something more specific.  Anything could have resulted in a false confession.  Testimony that only serves to create speculation is inadmissible.  

As a prosecutor, what do I look for in a confession to see if it's accurate?
1) Is it recorded on video or audio?  Most of mine are not so I must look at other factors.
2) Corroborating evidence.  Is the confession my only proof against the defendant?  Or do I have other proof to connect him to the crime?
3) Details in the confession.  Does the defendant provide details only the culprit would know?
4) Skill of the interrogator.
5) Types of questions asked.  Are they open-ended questions or leading?

Another aspect of false confessions is when it may affect a witness testifying for the prosecution.  Take the case of Ryan Ferguson in Missouri.  He was convicted of murder following a trial where his co-defendant testified against him.  The uproar over the case has centered around whether the police coerced a confession out of his co-defendant.

In New York, our law requires us to corroborate the testimony of a co-conspirator.  If one of our witnesses was in on the crime and is testifying against an accomplice, we must have additional proof to connect the accomplice to the crime.  This is a procedural safeguard against a defendant saying whatever he can just to get a better deal.  There must be other evidence to tie the person to the crime.

If you want to read a little more about the Ryan Ferguson discussion check out the comment section on this post.  It's a controversial case with many issues.

Next week is an exciting week.  Check back for an interview with a pioneer in homicide journalism. Here's a hint - Homicide Watch


  1. I think aggressive questioning can lead to false confessions:


  2. I agree that it can, Apirl. You cite some cases where it happened and there are many more where it did as well. That's why it's important for investigators to gather corroborating evidence and for prosecutors to analyze the confessions.

  3. While I realize this isn't completely related to the post, I'm curious how you would address a confession that was sent by electronic means, including email or social networking message? What if there were very little physical evidence? I know that the email and ISP information can be tracked, but would you even take the confession seriously or consider it a factor at all?

  4. You'd be surprised at how many people use social media to brag about criminal exploits. These are generally not enough to build a case around. They are pieces to a puzzle. We use them, but it is difficult to determine who is on the computer at the time the email was sent or message was posted. Anyone can use someone else's account. The evidence is relevant but usually not enough to be the primary evidence in the case.